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Monday, June 4, 2012

New Hearing for Prop 8 - Decision Tomorrow

The Ninth Circuit Court of Appeals will rule tomorrow
(Tuesday June 5th) on whether it will hear the Prop 8 Case "en banc",
which would mean hearing the case again with a panel of 11 judges. Should they
decide not to hear the case again it's likely Prop 8 supporters will try to get
the case to the Supreme Court.

Normally the filing is styled as a
petition for a rehearing or for a rehearing en banc. A rehearing by the
original panel is not granted very often. It's possible that the original panel
either determines that the petitioners have shown an obvious error, so we don't
need to go en banc because we can correct it ourselves, or the panel will
sometimes adjust their opinion trying to head off an en banc. They're not
likely to consider granting a rehearing of their own, but you never know.

In a case like this, almost certainly
the panel will refer it to the en banc court. It would then go to a judge who's
called the en banc coordinator. That coordinator will send it out and say
here's a petition for rehearing en banc – and they get a ton of these. But this
one will get special attention.

A majority of active judges in the
circuit needs to grant an en banc hearing. That's 13 votes, which is very hard
to get in a circuit that has 7,000 – 8,000 appeals filed a year. They grant
maybe 15-20 en bancs a year.

I think [Prop 8 proponents] are pretty
disappointed with Judge Smith's dissent, which was not a ringing Scalia-like
forceful "this is wrong." It was more like "we should be
cautious, although there are a lot of good points here."

The Supreme Court has said more than
once that the 9th circuit ought to use its en banc power to clear up
problematic decisions before the cases get to us. Then there are other judges
who believe that if a case is an outlier, it's the Supreme Court's job to clear
it up, not the en banc court.